## Facts

- The New Hampshire Division for Children, Youth and Families (DCYF) filed neglect petitions concerning two minor children, C.M. and A.M., alleging the parents failed to provide a safe and clean home, failed to supervise properly, and exposed the children to domestic violence.
- On an ex parte petition, the family division granted DCYF custody of the children.
- At the preliminary hearing, the adjudicatory hearing, and the dispositional hearing, the parents, Larry M. and Sonia M., were indigent and were each represented by court-appointed counsel under then-existing New Hampshire law.
- At the dispositional hearing, the court allowed the children to remain in DCYF custody and ordered the parents to complete certain steps before reunification could occur.
- The parents appealed to the superior court for a de novo hearing.
- Before the superior court hearing, the New Hampshire Legislature amended RSA 169-C:10 to eliminate what had previously been an indigent parent’s statutory right to appointed counsel in abuse and neglect proceedings.
- Larry and Sonia moved to retain their appointed attorneys, arguing that due process under Part I, Articles 2 and 15 of the New Hampshire Constitution and the Fourteenth Amendment required counsel when the State seeks custody based on abuse or neglect allegations.
- The superior court transferred the constitutional question to the New Hampshire Supreme Court on an interlocutory transfer without ruling.

## Issues

1. Does due process under the New Hampshire Constitution (Part I, Articles 2 and 15) require appointment of counsel for an indigent parent in every State-initiated abuse or neglect proceeding seeking custody of a minor child?
2. Does federal due process under the Fourteenth Amendment require appointment of counsel for an indigent parent in every such proceeding?
3. If there is no across-the-board right to counsel, what framework governs whether due process requires counsel in a particular abuse or neglect custody case?

## Decision

- The court held that neither state nor federal due process requires appointment of counsel for indigent parents in every abuse or neglect custody proceeding.
- The court held that due process may require appointed counsel in some cases, depending on the facts and procedural demands of the particular proceeding.
- The court answered the transferred question accordingly and remanded for the lower court to apply the case-specific due process analysis.

## Legal Principles

- Due process analysis of a claimed right to appointed counsel in child-protection proceedings applies the balancing approach described in Mathews v. Eldridge and used in Lassiter v. Department of Social Services.
- The Mathews/Lassiter inquiry considers: (1) the private interests affected (a parent’s liberty interest in the care and custody of children), (2) the government’s interests (child safety, accurate adjudication, and fiscal/administrative costs), and (3) the risk of erroneous deprivation without counsel and the likely value of counsel as an added safeguard.
- Under Lassiter, there is no automatic federal constitutional right to counsel in every parent-child case; the question turns on whether, in the particular matter, the absence of counsel would make the proceeding fundamentally unfair.
- In abuse and neglect custody proceedings, the parent’s interest is substantial because the State seeks to separate children from their parents and to impose conditions for reunification.
- The risk-of-error assessment may favor appointed counsel where the case presents legal or evidentiary difficulty, sharply disputed facts, extensive witness examination, expert testimony, parallel criminal exposure, or where an unrepresented parent cannot effectively present evidence and challenge the State’s proof.
- New Hampshire’s due process protections (Part I, Articles 2 and 15) are applied through a similar fairness-based, case-by-case approach rather than a categorical rule.

## Conclusion

In re C.M. holds that due process does not guarantee appointed counsel for indigent parents in every New Hampshire abuse or neglect custody proceeding, even after the legislature removed the prior statutory entitlement, but it may require counsel in a given case when a fact-specific balancing analysis shows that proceeding without counsel would be fundamentally unfair.


In re C.M., 48 A.3d 942 (2012)